May 14, 2009

Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations

Looking Ahead

As Obama’s faith-based office illustrates, changes in presidents and political parties may change the character of church-state partnerships. But the effects of these changes are limited because the executive and legislative branches are obligated to respect the appropriate constitutional limitations, which are determined by courts. It is difficult to predict precisely how the appointments of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006 might affect these boundaries, since the Supreme Court has not heard an Establishment Clause case since two Ten Commandment cases were decided several months before Roberts and Alito joined the court. (See the Pew Forum’s Religious Displays and the Courts.) Nevertheless, there is some evidence that both justices will move the court even further away from strict separationism. For instance, in the 2007 Hein case, which involved the scope of the court’s jurisdiction over Establishment Clause cases, both Roberts and Alito voted with the conservative majority that made it more difficult for people to bring such suits in federal courts.

It remains to be seen whether the high court will move further toward an approach that considers government funding of religious organizations constitutional as long as the funding does not favor religion over non-religion, or favor one particular faith, or whether it will return to a more separationist stance. If the past is any indication, however, the court will make changes slowly and will hew closely to core principles. Indeed, since the court embraced the metaphor of the wall of separation in Everson over 60 years ago, the law in this area has evolved in small increments rather than great leaps. Moreover, when examined as a whole, the underlying standards for government aid to religious institutions have remained relatively stable: the Supreme Court has continued to focus on whether the challenged practice renders the government responsible for supporting religious activity. This core principle appears likely to remain at the crux of all constitutional disputes over public funding of religion.


This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at The George Washington University Law School; David Masci, Senior Research Fellow at the Pew Forum on Religion & Public Life; Jesse Merriam, Research Associate at the Pew Forum on Religion & Public Life; and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at The George Washington University Law School.